Higgins, et al. v. Boston Scientific Corporation

Filing 590

ORDER granting in part and denying in part 379 Motion for Attorney Fees. Signed by Magistrate Judge Tony N. Leung on 9/3/2021. (Written Opinion) (LAS)

CASE 0:11-cv-02453-JNE-TNL Doc. 590 Filed 09/03/21 Page 1 of 24

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
United States of America and the State of
California, ex rel. Steven Higgins,

Case No. 11-cv-2453 (JNE/TNL)

Plaintiff,
ORDER

v.
Boston Scientific Corporation,
Defendant.

Daniel R. Miller and Jonathan Z. DeSantis, Walden Macht & Haran LLP, 2001 Market
Street, Suite 2500, Philadelphia, PA 19103; Joy P. Clairmont, Susan S. Thomas, and
William H. Ellerbe, Berger Montague PC, 1818 Market Street, Suite 3600, Philadelphia,
PA 19103; and E. Michelle Drake, Berger Montague PC, 43 Southeast Main Street, Suite
505, Minneapolis, MN 55414 (for Relator Steven Higgins); and
Frederick Robinson and Lesley Reynolds, Reed Smith LLP, 1301 K Street Northwest,
Suite 1100 – East Tower, Washington, DC 20005; Caitlin Chambers, Reed Smith LLP,
811 Main Street, Suite 1700, Houston, TX 77002; and Allison Lange Garrison, Norton
Rose Fulbright US LLP, 60 South Sixth Street, Suite 3100, Minneapolis, MN 55402 (for
Defendant Boston Scientific Corporation).
I. INTRODUCTION
This matter is before the Court, the Honorable Tony N. Leung, on Relator’s Fee
Petition Arising from Sanctions Order (ECF No. 379). Following the Court’s Order
granting in part and denying in part Relator’s Motion for Sanctions (ECF No. 354), which
awarded Relator certain costs and fees, the parties informed the Court that they were unable
to resolve the issue of how much Relator should be awarded in costs and fees. (See Case
Mgmt. Order, ECF No. 378.) The Court set a briefing schedule. (Id.) Based on the
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following, the Court grants in part and denies in part Relator’s petition, and awards Relator
reasonable costs and fees in the amount of $68,431.48.
II. BACKGROUND
A complete procedural history of Relator’s Motion for Sanctions (ECF No. 281)
(hereinafter “Sanctions Motion”) can be found in a previous order (hereinafter “Sanctions
Order”).

See United States ex. rel. Higgins v. Boston Sci. Corp., No. 11-cv-2453

(JNE/TNL), 2020 WL 968218, at *1 (D. Minn. Feb. 28, 2020). 1 The undersigned heard
oral argument on the Sanctions Motion after a prior order (hereinafter “Oct. 16 Order”)
awarding sanctions was vacated by the Honorable Joan E. Ericksen, District Judge for the
United States District Court for the District of Minnesota. See id. (“The Oct. 16 Order
was vacated to permit for oral argument and reconsideration . . . [the order vacating the
Oct. 16 Order] made no decision as to the merits of the Oct. 16 Order.” (citations omitted)).
The Sanctions Order also details the factual history of the case, and the bases for the
Sanctions Motion. Id. at *1-8. The Court ultimately determined that Defendant violated
Rule 26 by failing to disclose timely certain witnesses in its initial disclosures. Id. at *1011; see also id. at *13 (“Boston Scientific’s Rule 26(a)(1) disclosure failures were harmful
and prejudicial to Relator.”). The Court imposed various sanctions on Defendant. Id. at
*13-15. Relevant to the fee petition (hereinafter “Fee Petition”) currently at issue, the
Court ordered Defendant “to pay all Relator’s reasonable costs and attorney’s fees related
to briefing and arguing the sanctions motion.” Id. at *15 (citing Fed. R. Civ. P. 37(c)(1);

1

Also available at ECF No. 354.

2

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Fed. R. Civ. P. 37(b)(2)(A).) The Court further noted, however, that while it would award
Relator “all his reasonable costs and fees for having to bring the sanctions motion,” it would
not award costs and fees related “to past or future discovery.” Id.
On August 13, 2021, Judge Ericksen granted Defendant’s Motion for Summary
Judgement, ending this litigation. (ECF No. 588.) The matter of the Fee Petition, however,
remains.
This Court retains jurisdiction to issue an order awarding costs and fees under Rule
37. Both federal statutes and the Federal Rules of Civil Procedure guide magistrate judges
in the scope of their authority. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. The authority
of a magistrate judge to determine a matter by way of an order turns generally upon whether
the motion is considered “dispositive” or “nondispositive.” Robinson v. Eng, 148 F.R.D.
635, 639 (D. Neb. 1993) (citing 28 U.S.C. § 636(b)(1)(A)). As the monetary amount of
the sanction award does not dispose of a claim, it is nondispositive and the Court will rule
by way of an order. See Smith v. Bradley Pizza, Inc., No. 17-cv-2032 (ECT/KMM), 2019
WL 2448575, at *10-11 (D. Minn. June 12, 2019) (reviewing a magistrate judge’s order
awarding fees pursuant to Rule 37(b)(2)).
“Although Section 636(b)(1)(A) speaks in terms of ‘pretrial’ matters, courts have
consistently found that a magistrate judge has jurisdiction to issue a post-trial (or postdismissal) order on a motion for sanctions where the basis for sanctions arose in the case’s
preliminary stages, unless the nature of the sanction is dispositive of a party’s claim or
defense.”

Taverna Imports, Inc. v. A&M Wine & Spirits, Inc., No. 15-24198-CIV-

LENARD/GOODMAN, 2018 WL 11227736, at *4 (S.D. Fla. Dec. 20, 2018) (collecting
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cases); see also BankAtlantic v. Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1048
(11th Cir. 1994) (discussing Rule 37 sanctions awarded post judgment); Merrit v. Int’l Bhd.
of Boilermakers, 649 F.2d 1013, 1018 (5th Cir. 1981) (“Since discovery issues are by
definition pretrial matters, the magistrate possessed authority under 28 U.S.C. §
636(b)(1)(A) to assess reasonable expenses and attorney’s fees under Rule 37(a)(4), even
after judgment was rendered in the case.”). It also remains to be seen whether this case
will be appealed to the Eighth Circuit. Even if it is, however, the Eighth Circuit is one of
several circuits to “have held that a district court retains jurisdiction over ‘collateral’
matters, such as . . . motions requesting attorney’s fees, even though final judgment on the
underlying action has been entered.” Robinson, 148 F.R.D. at 638 (collecting cases); cf.
American Modern Home Ins. Co. v. Thomas, No. 4:16 CV 215 CDP, 2019 WL 3976355,
at *8-10 (E.D. Mo. Aug. 22, 2019) (discussing and ruling on a sanctions motion related to
discovery violations post-trial). The Court thus proceeds with analyzing the Fee Petition.
III. ANALYSIS
Relator seeks a total of $114,086.88 in fees, expenses, and so-called “fees-on-fees.”
Relator seeks $73,194.50 for fees and costs 2 related to the Sanctions Motion. (Mem. in
Supp. at 8, ECF No. 380.) In addition, Relator seeks $40,892.38 for so-called “fees-onfees” incurred in connection with time expended preparing the Fee Petition and replying to
Defendant’s memorandum in opposition to the Fee Petition. (See Miller Decl. ¶¶ 7 & 11,
ECF No. 396.)

Relator uses the term “expenses” in his briefing and other documents. The Court uses the terms “costs” and
“expenses” interchangeably in this Order.

2

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Defendant challenges Relator’s Fee Petition, arguing that the requested hourly rates
are unreasonable; the hours expended by Relator’s counsel are unreasonable; the requested
costs and expenses are unreasonable, excessive, and inadequately documented; and the
lodestar should be reduced for Relator’s lack of success on the motion. (See generally
Mem. in Opp’n, ECF No. 387.) It argues that Relator is entitled to no more than $32,000.
(Id. at 30.)
“Rule 37 sanctions must be applied diligently both to penalize those whose conduct
may be deemed to warrant such a sanction, and to deter those who might be tempted to
such conduct in the absence of such a deterrent.” NutriQuest, LLC v. AmeriAsia Imports
LLC, No. 18-cv-390 (NEB/KMM), 2018 WL 5785952, at *1 (D. Minn. Nov. 5, 2018)
(quoting Roadway Exp., Inc. v. Piper, 447 U.S. 752, 763-64 (1980)) (additional citation
omitted). In this case, the Court sanctioned Defendant by ordering it to pay Relator’s
reasonable costs and attorney’s fees related to briefing and arguing the Sanctions Motion.
Higgins, 2020 WL 968218, at *15.
A. Fees and Expenses Related to the Sanctions Motion
Relator initially presented a demand to Defendant of $81,429.88 in fees and
expenses for 128.5 hours of work. (Mem. in Supp. at 5-6; see also Ex. 2 to Clairmont
Decl., ECF No. 383-2.) This included time for briefing the issues in the August 2019 status
letter to the Court, preparation of the Sanctions Motion, responding to Defendant’s
objections to the Oct. 16 Order, and oral argument before the undersigned. (Id. at 4-6.)
After a breakdown in negotiations, the Court ordered briefing on the issue. (ECF No. 378.)
Below is a copy of a chart supporting this total provided by Relator’s counsel:
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incurred in relation to the Sanctions Motion.” 4 (Relator’s Mem. in Supp. at 8; see also id.
at 24. 5)
District courts have “broad discretion” in awarding attorney’s fees. Hanig v. Lee,
415 F.3d 822, 825 (8th Cir. 2005). “Where attorney fees are appropriate, courts typically
use the ‘lodestar’ method for calculating a reasonable award.” Paris Sch. Dist. v. Harter,
894 F.3d 885, 889 (8th Cir. 2018). “The lodestar is calculated by multiplying the number
of hours reasonably expended by the reasonable hourly rates.” Id. (quotation omitted).
“The essential goal in shifting fees . . . is to do rough justice, not to achieve auditing
perfection.” Fox v. Vice, 563 U.S. 826, 838 (2011).
1. Hourly Rates
“[A] reasonable hourly rate generally means the ordinary fee for similar work in the
community.” Little Rock Sch. Dist. v. State Ark. Dep’t of Educ., 674 F.3d 990, 997 (8th
Cir. 2012) (quotation marks and citations omitted). “Sometimes, where particular legal
specialization is required, courts may consider a national billing rate.” In re RFC, 399 F.
Supp. 3d 827, 846 (D. Minn. 2019) (citing Casey v. City of Cabool, 12 F.3d 799, 805 (8th
Cir. 1993)). Relator “bears the burden of producing satisfactory evidence—in addition to

In addition to these fees and expenses, Relator also seeks so-called “fees-on-fees” that will be discussed in Section
III(B), infra.
5
For purposes of analyzing the fees portion of Relator’s request for fees and expenses, the Court must do some
initial calculations. As is written on page 24 of Relator’s memorandum in support of the Fee Petition, Relator
exercised his billing judgment by applying the reduction of $8,234.50 to the entire value of fees and expenses he
initially sought. (See Mem. in Supp. at 24 (“Consequently, in the exercise of billing judgment, Relator will
voluntarily reduce his request for these entries by 50%, i.e. Relator seeks only $8,234.50 for this attorney time
($16,469 x .5 = $8,234.50). Thus, this Fee Petition seeks $73,194.50 ($81,429 – $8,234.50 =73,194.50).” (footnote
omitted).) This is somewhat confusing, as Relator’s request for recovery of $2,565.38 in expenses remains
unchanged. The Court will thus do its own math and subtract the $8,234.50 from Relator’s initial proposed fee
amount of $78,864.50, which results in $70,630 in requested fees ($78,864.50 - $8,234.50 = $70,630). $70,630 in
requested fees plus $2,565.38 in costs equals $73,195.38 in requested fees and expenses.
4

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the attorney’s own affidavits—that the requested rates are in line with those prevailing in
the community for similar services by lawyers of reasonably comparable skill, experience,
and reputation.” Midwest Disability Initiative v. Nelmatt, LLC, 334 F. Supp. 3d 1047, 1051
(D. Minn. 2018) (citing Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)) (additional
citation omitted). This Court may rely on its own experience and knowledge of prevailing
market rates to determine whether the rates sought are reasonable. See Hanig, 415 F.3d at
825.
Relator identifies the following hourly rates for his counsel: $345 for paralegal
David Filbert (24 years of experience); $773.82 for partner Dan Miller (28 years of
experience); $645 for partner Joy Clairmont (22 years of experience); $465 for associate
Jonathan DeSantis (7 years of experience); $790 for partner Susan Thomas (40 years of
experience); and $510 for associate William Ellerbe (8 years of experience). 6 (Mem. in
Supp. at 6-7; see also Clairmont Decl.; Ex. 2 to Clairmont Decl.) In support of these rates,
Relator submitted a declaration by its counsel which generally described the work
performed on the Sanctions Motion (Clairmont Decl.); a time report of the relevant work
completed, which amounts to 87 time entries for the six timekeepers (Ex. 1 to Clairmont
Decl., ECF No. 383-1); and a record of expenses incurred in bringing the motion and
traveling to Minneapolis for oral argument. (Ex. 3 to Clairmont Decl., ECF No. 383-3.)
Relator also submitted two additional declarations: one of Jeremy L. Friedman, who
was hired by counsel “to provide opinion testimony regarding the legal marketplace for
Mr. Filbert, Ms. Clairmont, Ms. Thomas, and Mr. Ellerbe are employed by Berger Montague PC. Mr. Miller and
Mr. DeSantis, formerly of Berger Montague, are now employed by Walden Macht & Haran LLP. (See Clairmont
Decl.)

6

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legal services by attorneys” who focus their practice on False Claims Act (“FCA”) cases
(ECF No. 384); and one of Susan M. Coler, a Minneapolis attorney and partner at Halunen
Law who represents whistleblowers in FCA cases. (ECF No. 385.) Lastly, Relator
submitted two court decisions addressing the issue of attorney’s fees: a 2020 postsettlement FCA case from the District of New Jersey where Boston Scientific was also the
defendant; and a 2019 case from this district which awarded attorney’s fees and costs
incurred in obtaining confirmation of an arbitration award and defending against a motion
to vacate the same award. 7 (ECF Nos. 381-1, 381-2.)
Relator first argues that the requested hourly rates are reasonable, as “the specialized
skills and experience needed to litigate FCA cases requires relators to search for counsel
across the country.” (Mem. in Supp. at 15-16 (citing Casey, 12 F.3d at 805); see also id.
at 17 (“the relevant market is the national legal community of qui tam attorneys with
sufficient skill and experience to handle an FCA case of this complexity and magnitude”).)
Relator alternatively argues that the requested rates are reasonable in the Minneapolis
market, and also maintains that the contingent nature of counsel’s representation should be
considered when analyzing counsels’ hourly rates for reasonableness. (Id. at 19-22.)
In support of Relator’s rates, Mr. Friedman outlines his personal experience with
FCA cases, including his work on statutory fee disputes. (Friedman Decl. ¶¶ 2-8.) He
notes, “[w]hile the number of experienced qui tam attorneys has increased in recent years,

Relator also submitted an additional declaration and five additional exhibits with his reply memorandum. (ECF
Nos. 396, 395-1, 395-2, 395-3, 394-4, 395-5.) These filings mainly address Relator’s request for fees associated
with litigating the Fee Petition, along with evidence that rebuts arguments made by Defendant in its responsive
memorandum. Relator’s request for fees associated with litigating the Fee Petition is discussed infra, Section III(B).
7

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there still remains a relatively small pool of attorneys nationwide who have the specialized
skills and knowledge base to lead these cases to their conclusion,” which necessarily means
that “relators searching for attorneys capable and willing to undertake their cases must
search around the country.” (Id. ¶ 10; see also id. ¶ 11 (“The legal marketplace for qualified
qui tam attorneys is a national one . . . To attract competent counsel to work on any qui tam
action in this district, the hourly rate paid to such counsel in ‘reasonable fees’ must be no
lower than the rates paid for specialized skills and experience nationally.”).) Mr. Friedman
also notes that there is only a small pool of attorneys qualified to lead FCA cases in the
Minneapolis area, and that even those attorneys often associate with non-local attorneys in
bringing these cases. (Id. ¶ 10.) In analyzing the contingent fee arrangement of many
attorneys representing relators in FCA cases Friedman also states, “[a]ttorneys willing to
take on qui tam litigation on a contingent basis . . . command a substantially greater
effective hourly rate than those who get paid monthly as they work.” (Id. ¶ 22.)
Ms. Coler’s declaration also notes that “FCA litigation, at least from the plaintiff’s
side, is an extremely risky, complex and time-consuming enterprise.

Attorneys

representing whistleblowers in False Claims Act litigation are typically only paid if the
lawsuit is successful” through the FCA’s fee-shifting provision or an agreement with the
whistleblower. (Coler Decl. ¶ 6.) After reviewing the Second Amended Complaint, the
orders on the motions to dismiss, and other select portions of the docket, she found, in
accordance with her personal experience practicing in Minneapolis in the area of FCA
litigation, that this case was particularly complex. (See id. ¶¶ 10-13.) Ms. Coler concluded
that, based on her experience in this district, a Minneapolis-based law firm “typically would
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not take on a case of this complexity and magnitude without assistance from one or more
other law firms with highly specialized experience litigating declined FCA cases.” (Id. ¶
14.) Ms. Coler also found the proposed rates “within the range of reasonableness for the
representation of whistleblowers in comparably complex False Claims Act cases in the
District of Minnesota by local attorneys of similar experience, representation and
background.” (Id. ¶ 19.) She notes that, with 32 years of experience her present hourly
rate is $740, and an associate in her firm’s FCA/Whistleblower practice group with five
years of experience has a billing rate of $385 per hour. (Id. ¶ 20.)
Defendant objects to these rates, arguing that they are much higher than the
prevailing market rates for attorneys in the Minneapolis area for performing similar work.
(Def.’s Mem. in Opp’n at 8.) The rates are particularly inflated, Defendant argues, as
notwithstanding the complexity of the underlying litigation, “[n]o specialized skills or
experience were needed” to bring a routine discovery motion such as the one currently at
issue. (Id. at 13-14; see also Def.’s Reply at 3, ECF No. 397 (“The underlying discovery
dispute at issue in the Sanctions Motion may have occurred in an FCA case, but it required
no specialized knowledge of the FCA.”).) Defendant also attacks the sufficiency of the
Friedman and Coler declarations (Id. at 11-13) and argues that Relator’s contingency fee
agreement should not apply at this juncture. (Id. at 14.) Though it has not submitted any
declarations by local attorneys who deem the fees unreasonably high, Defendant proposes
that the Court apply an hourly rate of $450 for partners, $350 for associates, and $150 for
paralegals. (Id. at 15.)

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The Court agrees with Defendant’s position that its counsels’ hourly rates are
largely irrelevant to the Fee Petition (see, e.g., Def.’s Reply at 5) and acknowledges that
this is a fee award related to a sanctions motion as opposed to any award post-judgment
where the fee shifting would be guided by provisions of the FCA. (See Def.’s Mem. in
Opp’n at 14; Def.’s Reply at 4-5.) Conversely, as the Court has previously summarized,
this was a complex, years-long case which was extremely litigious though the close of
discovery. See Higgins, 2020 WL 968218, at *1-8; see also id. at *12 (“[T]he court has
admonished both parties’ conduct throughout discovery.”).

And, while the Court

understands that a discovery dispute may be less complex than the ultimate merits of the
case, the complexity of the case as a whole necessarily affected the discovery and the
Sanctions Motion currently at issue. (See, e.g., Clairmont Decl. ¶ 23 (Defendant “produced
nearly 600,000 pages of documents and the parties took 35 depositions in 10 states across
the country.”).)
The attorneys in this case are skilled and experienced at representing whistleblowers
in FCA cases, which is a specialized area of practice. (See Clairmont Decl.) Relators have
also produced evidence of rates charged by comparably skilled and experienced attorneys
in Minneapolis. (See Coler Decl.) The Court also notes that recently in this district, courts
have approved similar rates when the circumstances are appropriate. See Miller v. Bd. of
Regents of Univ. of Minn., 402 F. Supp. 3d 568, 591-92 & 591 n.17 (D. Minn. 2019)
(finding that the award of up to $750 for attorneys and up to $250 for paralegals did “not
exceed the upper limit of what professionals with comparable experience, expertise, and
reputation command in this market.”); Roeser v. Best Buy Co., No. 13-cv-1968 (JRT/HB),
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2015 WL 4094052, at *12 (D. Minn. July 7, 2015) (awarding billing rates from $550 to
$775 per hour for attorneys and from $100 to $160 per hour for administrative
professionals at one firm and billing rates from $250 to $880 per hour for attorneys at
another in a consumer fraud class action settlement).
Nevertheless, in accordance with its knowledge and experience with the prevailing
rates in the Minneapolis market, coupled with the fact that this was a discovery motion
unrelated to the ultimate merits of this case, the Court finds certain requested rates
unreasonable. For example, Mr. Filbert’s $345 billing rate is high above the rates for
administrative professionals in this market. And, while Ms. Coler found the proposed rates
within the range of reasonableness for local attorneys with similar experience and
background, she makes less than Mr. Miller ($740 per hour as opposed to $773.82) despite
six more years of experience. Further, while the Court acknowledges Ms. Coler’s assertion
that she would rely on other out-of-state law firms in pursuing a case of this complexity
and magnitude, it is nevertheless the case that Minneapolis is a sophisticated legal market
with experienced attorneys such as Ms. Coler, who represents whistleblowers in FCA cases
and is qualified to lead national litigation teams.
Therefore, considering the Court’s knowledge and experience with the prevailing
rates in the Minneapolis market, the difference in local billing rates provided by Ms. Coler,
and the fact that the Sanctions Motion addressed discovery violations that could occur in
the context of many types of cases as opposed to the exclusive province of the FCA, the
Court finds reasonable and just the following hourly rates to each timekeeper when

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calculating the lodestar: $250 for Mr. Filbert, $740 for Mr. Miller and Ms. Thomas, $645
for Ms. Clairmont, $425 for Mr. DeSantis, and $450 for Mr. Ellerbe:
Timekeeper

Position

Rate

Paralegal

Years of
Experience
24

David Filbert
Dan Miller
Joy Clairmont

Partner
Partner

28
22

$740
$645

Jonathan DeSantis

Associate

7

$425

Susan Thomas

Partner

40

$740

William Ellerbe

Associate

8

$450

$250

2. Hours Reasonably Expended
The Court next addresses the reasonable number of hours expended. It is also
Relator’s burden to submit evidence supporting the hours worked. Hensley v. Eckerhart,
461 U.S. 424, 434 (1983). In calculating the lodestar, courts should exclude time that is
“excessive, redundant, or otherwise unnecessary.” Id.; see also Gumbhir v. Curators of
the Univ. of Mo., 157 F.3d 1141, 1146 (8th Cir. 1998). Nevertheless, as a court in this
district has written:
While the fee applicant must document its fees in order to
demonstrate its entitlement to the award, “trial courts need not,
and indeed should not, become green-eyeshade accountants.
So trial courts may take into account their overall sense of a
suit, and may use estimates in calculating and allocating an
attorney’s time.”

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Ewald v. Royal Norwegian Embassy, No. 11-cv-2116 (SRN/SER), 2015 WL 1746375, at
*4-5 (D. Minn. April 13, 2015) (quoting Fox 563 U.S. at 838).
Relator’s counsel states they have exercised billing judgment in reducing by 50
percent time entries Defendant challenged prior to the filing of the Fee Petition, which
would reduce their fee award by $8,234.50. (Mem. in Supp. at 24.) The Court, however,
will complete its own analysis.
The Court begins with the directive it issued in its Order awarding sanctions,
namely, that Defendant was ordered to “to pay all Relator’s reasonable costs and attorney’s
fees related to briefing and arguing the sanctions motion.” Higgins, 2020 WL 968218,
at *15 (emphasis added). Though the Court appreciates that Relator expended time and
effort preparing the original status letter presented to Magistrate Judge Rau on this issue,
the Order was clear that fees would be awarded for briefing and arguing the Sanctions
Motion.
a. Reduction of Hours for Initial Letter
The Court will eliminate the time expended on the preparation of the initial letter
sent to Magistrate Judge Rau, and thus will exclude those entries from the lodestar
calculation. This encompasses any entries made for work completed before August 23,
2019. (See Ex. 1 to Clairmont Decl.) The Court thus excludes 3.7 hours from Mr. Miller’s
time; 11.7 hours from Mr. DeSantis’s time; and 1.6 hours from Mr. Ellerbe’s time. This
reduces the lodestar accordingly:

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discovery period, the Sanctions Motion was highly contested. See Higgins, 2020 WL
968218, at *1-8 (providing a detailed history of discovery between the parties,
summarizing various disputes, and noting that “[t]he parties have submitted extensive
briefing and exhibits in connection with the [sanctions] motion and appeal” while citing to
11 documents.) This motion was briefed, ruled on, objected to (which necessitated further
briefing), and finally argued before the undersigned. To demonstrate the magnitude of this
discovery motion, the Court uses as examples that Defendant attached 37 exhibits to its
memorandum in opposition to the Sanctions Motion (ECF No. 292) and that Defendant
filed a 14-page objection to the Oct. 16 Order later vacated by Judge Ericksen. (ECF No.
318.) The time spent briefing and arguing the Sanctions Motion was reasonable in light of
the procedural history of the motion.
The Court also finds that the fees associated with travel time are reasonable given
the Court’s adjustment of certain timekeeper’s hourly rates and because they are reasonable
costs and fees related to arguing the Sanctions Motion. See Higgins, 2020 WL 968218, at
*15. The Court will not deduct the fees associated with travel time from the lodestar.
The Court, however, will reduce the award under the lodestar method because of
the vague nature of certain entries provided by Relator. See G.C. v. South Washington Cty.
Sch. Dist. 833, No. 17-cv-3680 (DSD/TNL), 2019 WL 1466046, at *2 (D. Minn. Apr. 3,
2019) (“Because the Court ‘cannot determine the appropriate fee from the record, it must
exercise its discretion in reducing the fee award.’”) (quoting MacGregor v. Mallinckrodt,
Inc., No. 01-cv-828 (DSD/SRN), 2003 WL 23335194, at *13 (D. Minn. July 21, 2003)
(additional citation omitted)). Relator has not met his burden to establish certain billing
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entries have adequate connection to the briefing and arguing of the Sanctions Motion. In
certain instances, this confusion is caused by entries which are listed with vague block
billing, some unrelated to the Sanctions Motion. By way of example, the following entries
seem to have little or no connection to the Sanctions Motion and/or combine time related
to the Sanctions Motion and other work:
Employee

Date

Hours

Narrative

JPC Clairmont, Joy P

2/28/2020

1.5

SST Thomas, Susan S.

11/10/2019 .8

SST Thomas, Susan S.
SST Thomas, Susan S.

11/11/2019 .7
11/12/2019 .7

WE Ellerbe, William

10/23/2019 1.7

Reviewed Court’s Order on discovery
violations; reviewed and revised
email to defense counsel re: Version 1
devices; reviewed WHE’s email re:
same; communicated with team re:
revised case schedule per Court’s
Order.
Emails re advising BSC of issues for
letter; emails re Judge Rau.
Revise, edit letter to magis.
Review correspondence and draft
response re disc disputes.
Weekly meeting with litigation team
to discuss expert discovery and

(Ex. 1 to Clairmont Decl. at 2-6.)
The Court appreciates that Relator has exercised billing judgment by voluntarily
taking a 50 percent reduction to the time entries they viewed as “potentially subject to
[Defendant’s] vagueness argument,” which results in reducing the lodestar by $8,234.50.
(Reply in Supp. at 11, ECF No. 394.) The Court, however, has done its own review of the
time entries and will reduce the lodestar by 20 percent, consistent with its review of the
entries and “with decisions reached in other cases where parties presented inadequate
documentation of attorney fees.” G.C., 2019 WL 1466046, at *2; see also Safelite Grp.,
18

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Inc. v. Rothman, No. 15-cv-1878 (SRN/KMM), 2017 WL 3495768, at *6 (D. Minn. Aug.
11, 2017) (noting that while the Eighth Circuit does not prohibit block billing, block billing
nevertheless “makes it difficult to determine the amount of time apportioned” between
claims.) This reduction results in a lodestar of $52,105.60. 8
3. Further Lodestar Adjustment
Defendant seeks a downward adjustment of the lodestar based on Relator’s lack of
success on the motion and also requests that the Court exclude all fees incurred in opposing
the appeal of Magistrate Judge Rau’s October 16, 2019 Order. (Mem. in Opp’n at 27-30.)
“After the Court determines the lodestar, it may adjust the figure upward or downward,
after taking into account various considerations, including the most important factor—the
results obtained.” Libertarian Party of South Dakota v. Krebs, No. 15-4111, 2018 WL
4762966, at *5 (D.S.D. Oct. 2, 2018) (citing Hensley, 461 U.S. at 434). Courts regularly
consider the following factors:
(1) the time and labor involved; (2) the novelty and difficulty
of the question; (3) the skill requisite to perform the legal
service properly; (4) the preclusion of employment by the
attorney due to the acceptance of the case; (5) the customary
fee; (6) whether the fee is fixed or contingent; (7) time
limitations imposed by the client or the circumstances; (8) the
amount involved and the results obtained; (9) the experience,
reputation and ability of the attorney; (10) the “undesirability”
of the case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar cases.
Hensley, 461 U.S. at 430 n.3 (citing the factors set forth in Johnson v. Georgia Highway
Express, Inc., 488 F.2d 714, 718-19 (5th Cir. 1974)). “[T]here is a strong presumption that

8

$65,132 x .20 = $13,026.40 adjustment. $65,132 - $13,026.40 = $52,105.60.

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the lodestar figure is reasonable, but that presumption may be overcome in those rare
circumstances in which the lodestar does not adequately take into account a factor that may
properly be considered in determining a reasonable fee.” Perdue v. Kenny A. ex rel. Winn,
559 U.S. 542, 554 (2010).
Defendant seeks a 38 percent reduction of the relief sought because the Court only
granted 12 of 31 requests made by Relator in the Sanctions Motion. (Mem. in Opp’n at
28.) But calculating “success” on a sanctions motion is not so formulaic. The Court first
notes that its Order specified that Defendant’s sanctionable conduct was serious and
unjustified. See Higgins, 2020 WL 968218, at *12 (highlighting Defendant’s sanctionable
conduct and stating, “Boston Scientific’s failure to provide witness information in its Rule
26 disclosures until the final hours of discovery is not justified, much less substantially
justified.”); see also id. at *13 (“But here, the whole of discovery was strained.”). Further,
the Court could have remedied the sanctionable conduct through a number of options under
Rule 37. See id. (“Here, the parties have submitted several rounds of briefing related to
the sanctions motion and presented additional argument at the motions hearing, opening
the full panoply of remedies to the Court.”). Tailoring the remedies to the particular
circumstances of the case, the Court chose to award fees and order further discovery as
opposed to excluding certain evidence or giving adverse inferences. Id. at *13-15.
Nevertheless, when considering the Johnson factors, as well as the results obtained
by Relator, the Court considers an approximately $55,000 fee award on a discovery
sanctions motion unreasonably high. A recent award of fees and costs pursuant to Rule
37(b)(2) in this district was just less than $20,000. See Darmer v. State Farm Fire and
20

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Cas. Co., No. 17-cv-4309 (JRT/KMM), 2020 WL 1558137 (D. Minn. Feb. 24, 2020)
(awarded pursuant to counsel’s abuse of the discovery process including during initial
production), report and recommendation adopted, 2020 WL 1550725 (Apr. 1, 2020); cf.
Harris v. Chipotle Mexican Grill, Inc., No. 13-cv-1719 (SRN/SER) & No. 14-cv-4181
(SRN/SER), 2018 WL 617972, at *14 (making an overall downward reduction in part due
to “lower awards in similar cases”). The Court will therefore apply a downward reduction.
Balancing the Johnson factors with the complex and litigious nature of this case, along
with the experience, reputation, and ability of Relator’s counsel, the Court finds that an
overall downward reduction of 25 percent is reasonable. This results in a fee award of
$39,079.20. 9
4. Expenses
Relator seeks $2,565.38 in expenses. (Exs. 2 & 3 to Clairmont Decl.) Defendant
argues that the travel expenses should not be recovered. (Mem. in Opp’n at 26.) The Court
disagrees. It ordered Defendant “to pay all Relator’s reasonable costs and attorney’s fees
related to briefing and arguing the sanctions motion.” Higgins, 2020 WL 968218, at *15.
Traveling to argue the Sanctions Motion before the Court was a reasonable expense. See
Short v. Manhattan Apts., Inc., 286 F.R.D. 248, 257 (S.D.N.Y. Oct. 11, 2012) (awarding
travel costs for travel time spent handling noncompliance with discovery orders); see also
Fed. R. Civ. P. 37(b)(2)(C) (“Instead of or in addition to the orders above, the court must
order the disobedient party, the attorney advising that party, or both, to pay the reasonable

9

$52,105.60 x .25 = $13,026.40 adjustment. $52,105.60 – $13,026.40 = $39,079.20.

21

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expenses, including attorney’s fees.”); Fed. R. Civ. P. 37(c)(1)(A) (a court “may order
payment of the reasonable expenses, including attorney’s fees.”).
5. Conclusion on Fees and Expenses Related to the Sanctions Motion
The Court finds that awarding Relator $41,644.58 in fees and expenses related to
briefing and arguing the Sanctions Motion reasonable and fair in this case. 10
B. Fees on Fees
“[A] party moving for attorneys’ fees may also recover fees for the time expended
in filing a motion for attorneys’ fees.” Sunlighten, Inc. v. Finnmark Designs, Inc., No.
2:20-cv-00127-JAD-EJY, 2021 WL 3010010, at *2 (D. Nev. July 15, 2021) (awarding
“fees-on-fees” in context of Rule 37 sanctions motion); see also Novick v. AXA Network,
LLC, No. 07-cv-7767 (AKH)(KNF), 2015 WL 764021, at *4 (S.D.N.Y. Feb. 23, 2015)
(“[U]nless there are reasons to the contrary, motion costs should be granted whenever
underlying costs are allowed . . . plaintiff is entitled to the reasonable attorneys’ fees he
incurred in making the instant fee application.”) (quotation omitted).
Relator seeks recovery in the amount of $40,892.38 for the time spent on the Fee
Petition and reply, noting that he “does not seek recovery for the considerable time spent
on the parties’ unsuccessful negotiations, including preparation of lengthy letters that
essentially took the form of legal briefs.” (Miller Decl. ¶ 7.) Counsel submits that 74.8
hours were expended to litigate the Fee Petition and reply and that this was a reasonable
number of hours due to “the volume and nature of the various arguments that [Defendant]

10

$39,079.20 (fees) + $2,565.38 (expenses) = $41,644.58 total award.

22

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CASE 0:11-cv-02453-JNE-TNL Doc. 590 Filed 09/03/21 Page 24 of 24

the Court is awarding for fees and expenses related to the Sanctions Motion. This is not
proportional or reasonable. The Court will apply a 30 percent reduction to reflect the
downward reduction of the lodestar. See supra Section III(A)(3). The Court finds an award
of $26,786.90 11 reflects reasonable recovery to Relator in pursuing its award of costs and
fees for briefing and arguing the Sanctions Motion.
C. Conclusion
The Court finds that awarding Relator $68,431.48 in reasonable expenses,
including attorney’s fees is reasonable and just. 12
IV. ORDER
Based on the foregoing, and the file, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Relator’s Fee Petition Arising from Sanctions Order (ECF No. 379) is GRANTED
IN PART and DENIED IN PART as specifically outlined herein.
2. Within 30 days of the date of this Order, Defendant shall pay Relator $68,431.48 as
reasonable compensation for the attorneys’ fees and costs that Relator incurred in
connection with briefing and arguing the Sanctions Motion.

Date: September 3 , 2021

s/Tony N. Leung
Tony N. Leung
United States Magistrate Judge
District of Minnesota
Higgins v. Boston Scientific Corp.
Case No. 11-cv-2453 (JNE/TNL)

$38,267 x .3 = $11,480.1 reduction. $38,267 - $11,480.1 = $26,786.9.
$39,079.20 fee award for time related to briefing and arguing the Sanctions Motion + $2,565.38 in expenses
related to briefing and arguing the Sanctions Motion + $26,786.90 fee award for time related to preparing the Fee
Petition and reply = $68,431.48.
11
12

24